APPEAL from the Circuit Court of Vermilion County; the Hon.
PAUL M. WRIGHT, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(2)), entered upon a jury verdict. The information alleged that the defendant struck, threw or hit his step-daughter, aged three years, against a toilet fixture "knowing that such act created a strong probability of death or great bodily harm." A sentence of 20 years was imposed.
Upon appeal it is urged that defendant was denied a fair trial and the trial court abused its discretion when it denied defendant's motion in limine which would excise from defendant's tape-recorded statement certain matters and conduct which are said to describe unrelated offenses and to portray defendant as an evil person. It is also argued that defendant was not proven guilty beyond a reasonable doubt. An ancillary issue argued is that the trial court erred in failing to instruct the jury sua sponte upon the issues of involuntary manslaughter.
No questions are raised as to the voluntary nature of the tape-recorded statement. It was commenced about four hours after the death was ascertained and following a conversation between the defendant and police officers over a period of about 45 minutes. As transcribed, the statement included some 52 typed pages. As noted by the trial court, the statement is "rambling" and upon reading, portions are virtually incoherent.
It is argued that certain portions were extraneous to the issues. These included a statement of defendant's relationship with his parents his father demanded perfection in defendant's conduct and was described as having worked 365 days without missing a day. He also stated his mother maintained a home so immaculate that one could eat from the floor. Defendant had run away from home but had returned. Defendant stated his belief that since his marriage his parents had refused or were unresponsive to defendant's wishes that they visit his home, and he believed that they were indifferent to his family.
Defendant also objects to a brief portion of the statement relating to his detestation of his wife's cats which were permitted to roam through the home and were described as shedding hair which got into his food. On one occasion, he observed a cat shedding hair in the kitchen and he grabbed it, squeezed it and perhaps broke its leg. It is argued that such statement portrayed defendant as an evil man and was irrelevant to the issues.
Defendant argues that the statement contains reference to unrelated crimes in the portion of the statement relating to the discipline imposed upon the victim and her sister, aged about two years. The focus was upon the difficulty in toilet training and the resulting condition of the defendant's home. He described that condition as no way to live. The discipline involved placing the child upon the toilet or commode and leaving her there four or five hours. There is no evidence that the mother objected and the defendant stated that the discipline was effective for a period of a few days. The statement also included reference to spanking the children when defendant would sometimes strike them in the face hard enough to knock them over, but not enough to leave a bruise or mark. This is said to be an offense of cruelty to children. Upon the motion in limine, defendant argued that all portions of the statement should be excluded except the portions taken beginning with the time that defendant took the children into the bedroom.
The events in evidence at defendant's home on March 29, 1978, are largely from the statement of defendant. He arose about 1 p.m. Between 1:30 and 2 p.m. he undertook to discipline the child using his belt. Two neighbors testified to hearing the loud voice of a man and a child crying. The wife testified that she intervened and thereafter the defendant took the child into the bathroom. She then returned and was sitting in a front room. Defendant's statement was that he instructed the child to take down her clothes. She did so and stood there looking at him. The statement repeats in several places that he then picked her up and "threw" her on the "pot." The same statement was made in substance in the presence of witnesses. The statement continues that "her eyes were rolled back into her head a little bit and she started to bending backwards and stuff and then we took her back into the bedroom." The statement and the wife's testimony are that the child's head rotated in such a way that defendant and his wife believed that the neck was broken. Defendant attempted to give mouth-to-mouth resuscitation while the wife called an ambulance. The child was dead when the ambulance technicians first saw her.
At the time of the hearing on the motion in limine, the trial court was aware that defendant had requested funds for psychiatric examination and that discovery had disclosed a possible insanity defense. There had been, however, the report of a psychiatrist advising that defendant knew his acts and the consequences; that defendant's acts were the product of his personality structure; that he had no intent to kill but did not realize his own strength. In denying the motion, the trial court stated that the portions of the statement objected to were probative of defendant's mental state and violent nature.
Defendant cites People v. Oden (1960), 20 Ill.2d 470, 170 N.E.2d 582, and People v. Gregory (1961), 22 Ill.2d 601, 177 N.E.2d 120, as holding that a defendant's volunteered statement of unrelated crimes are inadmissible and must be excised from any statement or confession presented to the jury. Terming the discipline of the children evidence of unrelated offenses, defendant asserts the denial of a fair trial and an abuse of judicial discretion in the ruling.
Defendant argues that evidence of offenses unrelated to the charge for which he is on trial is incompetent and inadmissible unless the evidence tends to prove a fact in issue or goes toward showing motive, intent, identity, absence of mistake or modis operandi. Such language is used in People v. McDonald (1975), 62 Ill.2d 448, 455, 343 N.E.2d 489, 493. That opinion continues, however, saying:
"In fact it has been broadly held that evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime. People v. Dewey, 42 Ill.2d 148, 157; People v. Cole, 29 Ill.2d 501, 503."
"[E]vidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit the crime. People ...